The Death Penalty Case Where Prosecutors Wrote the Judge’s ‘Opinion’

Is that fair? The U.S. Supreme Court could soon decide.

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system. An audio version of Case in Point is broadcast with The Takeaway, a public radio show from WNYC, Public Radio International, The New York Times, and WGBH-Boston Public Radio.

When judges make a decision—especially in a death penalty case—we’d like to think they weigh all sides, consider the law and come to a measured, independent conclusion. Not so in Alabama, where a judge’s shortcut in the case of Doyle Lee Hamm has shown how often the state makes a mockery of the appeals process.

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system.

The U.S. Supreme Court is now considering whether to take up the case of Hamm, an intellectually disabled and possibly brain-damaged man who was sentenced to death in 1987 for killing a motel clerk during a robbery. Doyle went to his fate after a rushed trial marked by an anemic defense and constitutionally murky decisions by prosecutors and the judge. That’s sadly common in Alabama.

What happened next also is common in Alabama—but pretty much nowhere else.

Twelve years after Hamm was sentenced to death, an Alabama judge rejected an attempt by his new attorneys to win another sentencing hearing for their client. The lawyers wanted to present facts from Hamm’s grim life that might have convinced a jury not to impose death—so-called mitigation evidence—that Hamm’s first lawyer failed to unearth during his trial. That, too, happens all the time.

But in turning down the appeal, the judge exposed the entire process as a sham. He signed an 89-page order written entirely by the Alabama Attorney General’s Office—and did it within one business day of receiving it. He didn’t even take the time to cross off the word “Proposed” in the title, “Proposed Memorandum Opinion.” Hamm’s attorneys allege the judge never read the opinion before signing it, and no state attorney has ever refuted that.

Many judges across the country routinely sign perfunctory orders drafted by lawyers, usually one- or two-page documents. But only in Texas and Alabama, evidently, is this done with substantive opinions on which appellate judges later rely.

In the Hamm case, the “opinion” is the lynchpin of Alabama’s decades-long defense of its conviction and death sentence. It has been cited as gospel over and over again since 1999 by state and federal judges to justify their refusal to give Hamm a new sentencing hearing. Over and over again, the argument justifying this practice has been the same: it doesn’t really matter who wrote the opinion or even whether the judge who signed it ever read it because Hamm hasn’t proven that the contents of the order were wrong.

No one disputes Hamm’s culpability in the murder of Patrick Cunningham. Two accomplices, who at first claimed they had been kidnapped by Hamm, agreed to testify against him. But prosecutors probably didn’t need them. Hamm confessed after a lengthy interrogation. The statement was read for the jury, which took just 50 minutes to come back with a guilty verdict.

It was the next phase of Hamm’s trial—the sentencing phase—that raises the questions now on appeal to the Supreme Court.

Hamm’s trial attorney did virtually nothing to try to spare his client’s life and called only two witnesses in his 19-minute defense: Hamm’s sister and a bailiff. When prosecutors improperly introduced evidence of Hamm’s prior convictions in Tennessee—convictions that may have been based on flawed procedures—Hamm’s attorney did nothing to correct the error. It took the jury just 45 minutes to come back and recommend a death sentence.

Jurors were never told that Hamm had been diagnosed as borderline mentally retarded as early as 1969, nearly two decades before the crime. They were not told about a school record that repeatedly cited his intellectual deficits. Nor were jurors given any expert evidence about Hamm’s lengthy history of seizures, head injuries and drug and alcohol abuse. The fuller portrait of Hamm’s life was that of a barely literate, brain-damaged man with little impulse control, someone who might have been perceived as having diminished criminal responsibility.

Alabama prosecutors maintain that information would have made no difference in his sentencing. The 1999 opinion naturally took a dim view of the relevance and timeliness of the evidence presented by Hamm’s new defense attorneys. The opinion states the evidence wasn’t “new” but “cumulative”—essentially, repetitive—a legal standard that makes a difference in winning a new hearing. How evidence that was never introduced at trial could be considered “cumulative” 12 years later was a question left unanswered.

No judge evaluating this case has ever declared the “Proposed Memorandum Opinion” invalid. The closest anyone came was last year, during oral arguments before the 11th U.S. Circuit Court of Appeals, when an incredulous Judge Adalberto Jordan questioned Alabama attorneys about the appearance of partiality created by the “opinion.” Wouldn’t you be hollering if the judge had rubber-stamped an 89-page ruling drafted by defense attorneys, the judge asked state lawyers? And isn’t there something fishy about such a detailed opinion being signed on a Monday after being submitted on the previous Friday?

The state had no good answer to those questions, but it didn’t matter. Jordan, like all the judges before him, shrugged and joined two other appellate judges in denying relief to Hamm.

Both in and out of court, Alabama has defended both Hamm’s sentencing hearing and the ghostwriting episode. The “Proposed Memorandum Opinion” is sound no matter who wrote it, state lawyers argue, and there is no reason to think it unreasonable that the judge who signed it did so without considering its contents.

It would be one thing if the ghostwriting scenario that took place in the Hamm case was a one-off event. It is not. In support of Hamm, a group of former Alabama judges and past state bar presidents told the justices in Washington that it is routine practice in Alabama for prosecutors to write proposed orders for judges in capital cases. In 2003, a study found that in 17 of 20 recent capital cases the judge had denied relief in orders written entirely by prosecutors.

Sure, the criminal justice system would move more quickly if prosecutors ghostwrote appellate decisions in capital cases. No defendant ever would win an appeal. No conviction or sentence would ever be adjudged unfair or unjust. Judges could knock off early. But that’s not how our system works, at least not beyond the borders of Alabama. Hamm may be a convicted murderer. But that doesn’t mean the state can subvert his rights in such a blatant fashion.

This shouldn’t be a tough call for the Supreme Court. The case presents a straightforward opportunity to send a clear message to lower court judges: whatever else due process means, whatever else federal habeas corpus rules mean, they require a judge to at least pretend to carefully consider the evidence before rendering judgment in a capital case. If the Supreme Court does this and no more in the Hamm case, it will be furthering the interests of justice.

Supported by the Louis Lowenstein Award for Criminal Justice Commentary.